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ANGUILLA

A BILL FOR

PUBLIC PROCUREMENT AND CONTRACT ADMINISTRATION

ACT, 2011

Published by Authority

Anguilla Public Procurement and Contract Administration Act, 2011 BILL

TABLE OF CONTENTS

SECTION

PART 1

PRELIMINARY

1. Interpretation

2. Delegation

3. Meaning of “confidential” in relation to solicitations for national defence and national security

4. Purposes of Act

5. Procurements exempt under the Act

6. Artificial division of solicitations prohibited

PART 2

ORGANIZATION OF GOVERNMENT PROCUREMENT

7. Establishment of Procurement Unit

8. Appointment of Chief Procurement Officer and staff

9. General duties and powers of Chief Procurement Officer

10. Procurement authorities

PART 3

SOLICITATION PROCEDURES AND AWARD OF CONTRACTS

Division 1

Solicitation Procedures

11. Requirements for all procurements

12. Estimate of amount of contract award and breakdown

13. Solicitations by competitive sealed bids to be default procedure

14. Solicitation by competitive sealed proposals

15. Large sole source solicitations

16. Small sole source solicitations

17. Emergency solicitations

18. Solicitations equal to or exceeding the prescribed amount

19. Solicitations less than the prescribed amount

20. Competitive quotations to be default procedure for small procurements

21. Confidential procurements


Division 2

Notice of Competitive Sealed Bids or Proposals and Invitations to Prequalify and Opening of Bids,

Requests for Proposals and Applications to Prequalify

22. Notice of invitation for bids, requests for proposals or to prequalify

23. Opening bids, proposals and applications to prequalify

24. Notice of invitation for bids or proposals or to prequalify that is confidential

25. Opening bids, proposals and applications to prequalify that are confidential

Division 3

Award of Contract

26. Award of contract after competitive sealed bids

27. Award of contract after competitive sealed proposals

28. Award of contract after an emergency solicitation

29. Award of contract after large sole source solicitation

30. Award of contract after solicitation by competitive quotations

31. Award of contract after small sole source solicitation

32. Award when small procurement contract equals or exceeds the prescribed amount

PART 4

PROCUREMENT BOARD

33. Procurement Board established

34. Duties and powers of the Board

PART 5

SUSPENSION AND DEBARMENT

35. Definition

36. Grounds of suspension or debarment

37. Procedure for suspension or debarment

38. Appeal

39. Order suspending effect of decision of the Board

40. Order of High Court

PART 6

MISCELLANEOUS

41. Regulations

42. Regulations to be laid before the House of Assembly

43. Procurement Policy Advisory Committee

44. Procurement Ombudsman

45. Investigating a complaint

46. Development of a code of conduct


47. Immunity

48. Limitation on court proceedings

49. Citation

50. Commencement

51. Transitional Provisions

52. Consequential Amendments

SCHEDULE 1: Constitution, Operation and Procedures of the Procurement Board

SCHEDULE 2: Consequential Amendments


I Assent

Governor

________

Date

ANGUILLA

A BILL FOR

PUBLIC PROCUREMENT AND CONTRACT ADMINISTRATION ACT, 2011

NO. /2011

[Gazetted ] [Commencement: Section 50]

An Act to reform the procurement and contract administration procedures of the Government and

to provide for matters connected therewith and incidental thereto.

ENACTED by the Legislature of Anguilla

PART 1

PRELIMINARY

Interpretation

1. (1) In this Act, unless the context otherwise requires—

“Act” includes the regulations;

“advantage” includes an offer of employment;

“Board” means the Procurement Board established under section 33(1);

“Chief Procurement Officer” means the Chief Procurement Officer appointed under section 8(1);

“cohabitant” means a person who lives in a domestic relationship which is similar to the

relationship between husband and wife;

“co-operative procurement agreement” means an agreement under which the Government agrees

with one or more—

(a) other governments; or

(b) statutory bodies inside or outside Anguilla,


to procure goods or services through a central organization, such as the Eastern Caribbean

Central Bank or a regional organization, using the procurement procedures of the central

organization;

“emergency solicitation” means the solicitation procedure referred to in section 17;

“entity” includes a company, partnership or a joint venture;

“financial interest” includes a financial liability;

“goods” means tangible personal property and software, whether on a CD-ROM or other tangible

medium or as a download from the internet or otherwise, and includes services incidental

to the supply of those goods if the value of those services based on a breakdown of the

estimate of the amount of the contract award does not exceed the value of the goods;

“large sole source solicitation” means the solicitation procedure referred to in section 15;

“Minister” means the Minister with responsibility for procurement;

“Ministry” means the Ministry with responsibility for procurement and related contract

administration;

“partnership” includes a limited partnership;

“Permanent Secretary” means the Permanent Secretary to the Ministry and includes a public

officer acting in the post of Permanent Secretary;

“person” means a corporation, individual, sole proprietorship, partnership or joint venture and

includes its assigns and heirs, executors and administrators or other legal representatives;

“prescribed” means prescribed by regulation under section 41;

“procure” means acquire works, goods or services and includes acquisition by purchase, lease,

rental or other similar arrangement;

“procurement” means a procurement made by the Government under this Act;

“procurement authority” means a procurement authority referred to in section 10;

“Procurement Unit” means the Procurement Unit established under section 7;

“public officer” has the meaning referred to in section 73 of the Constitution;

“regulation” means a regulation made under section 41;

“restricted procurements” means procurements established as restricted procurements by the

Board under section 34(1)(c);

“services” means the supply of—


(a) labour, time or effort, not involving furnishing a tangible end-product other than a

report or goods or other tangible property produced or supplied incidental to the

labour, time or effort but does not include the employment of a public officer;

(b) insurance coverage or other similar services; or

(c) electricity, telecommunications, water and other similar services and includes

goods, products or other tangible property supplied in connection with electricity,

telecommunications, water and other similar services,

but does not include specified professional services or other services exempted by

regulation;

“small procurement” means a procurement referred to in section 19;

“small sole source solicitation” means the solicitation procedure referred to in section 16;

“solicitation by competitive quotations” means the solicitation procedure referred to in section 20;

“solicitation by competitive sealed bids” means the solicitation procedure referred to in section

13;

“solicitation by competitive sealed proposals” means the solicitation procedure referred to in

section 14;

“specified professional services” means the professional services of—

(a) an accountant;

(b) an actuary;

(c) a lawyer;

(d) a land surveyor;

(e) a physician;

(f) a dentist; or

(g) a prescribed professional other than an architect or engineer;

“spouse” does not include a person from whom a public officer is separated if all support

obligations and family property have been dealt with by a separation agreement or a court

order.

“standard solicitation documents” means—

(a) documents approved by the Board under section 34(1)(a)(i); and

(b) amendments to the documents referred to in paragraph (a) approved by the Board

under section 34(1)(a)(ii);


“submission” means the response to a solicitation;

“two-envelope bidding process” means a competitive sealed bidding process in which two bids

are submitted at the same time, the first envelope containing a technical bid and the second

envelope containing a priced bid, on the understanding that the first envelopes submitted

by the bidders will be opened and the bids evaluated before the second envelopes

submitted by the bidders who have qualified are opened and evaluated;

“two-envelope proposal process” means a competitive sealed proposal process in which two

proposals are submitted at the same time, the first envelope containing a technical

proposal and the second envelope containing a priced proposal, on the understanding that

the first envelopes submitted by the offerors will be opened and the proposals evaluated

before the second envelopes submitted by the offerors who have qualified are opened and

evaluated;

“two-stage bidding process” means a competitive sealed bidding process in which, in the first

stage, bidders are invited to submit a bid based on an invitation for bids with unpriced

technical specifications on the understanding that, at the second stage, an invitation for

bids will be issued inviting prices only from those bidders who submitted bids and have

qualified in the first stage;

“two-stage proposal process” means a competitive sealed proposal process in which, in the first

stage, offerors are requested to submit a proposal based on a request for proposals with

unpriced technical specifications on the understanding that, at the second stage, a request

for proposals will be issued requesting prices only from those offerors who submitted

proposals and have qualified in the first stage;

“works” means the construction, reconstruction, erection, installation, repair, renovation,

extension or demolition of a building, structure or works and includes services such as

mapping, drilling, soil testing, site preparation, excavation, demolition, maintenance and

other similar activities furnished in connection therewith if the value of the works based

on a breakdown of the estimate of the amount of the contract award does not exceed the

value of the construction, reconstruction, erection, installation, repair, renovation,

extension or demolition of the building, structure or works.

(2) The following are the members of a public officer’s family for the purposes of this

Act—

(a) his or her spouse or cohabitant;

(b) his or her children and the children of his or her spouse or cohabitant;

(c) his or her parents;

(d) his or her brothers or sisters including half brothers and half sisters and brothers

and sisters by adoption.

(3) A person has a financial interest in an entity if that person—

(a) is a director, officer or employee of a company;


(b) is a partner in a partnership or an employee of the partnership;

(c) is a shareholder in a company;

(d) is a trustee under a trust or an employee of the trust;

(e) is a party to a joint venture;

(f) is a creditor of debtor of a company, partnership or trust; or

(g) possesses any other capacity provided by regulation,

other than a financial interest or class of financial interest excluded by regulation.

(4) A reference to an estimate of the amount of a contract award is a reference to the

estimate of the contract award referred to in section 12(a).

(5) A reference to a breakdown of an estimate of the amount of a contract award is a

reference to the breakdown referred to in section 12(b).

(6) If a term is defined in this Act or the regulations, other grammatical forms and

cognates of the same term have corresponding meanings.

Delegation

2. (1) Subject to the provisions of this Act, a public officer who is not a member of the

Board may delegate the performance of his or duties under this Act to another public officer.

(2) When under or in relation to this Act a public officer delegates the performance of his

or her duties or the exercise of his or her powers to any public officer, the delegate, in addition to

the public officer making the delegation, is liable for the proper performance of the duty or the

proper exercise of the power that is delegated.

Meaning of “confidential” in relation to solicitations for national defence and national

security

3. A solicitation and the contract arising from it are confidential when—

(a) the solicitation and contract are for a procurement made for the purpose of

national defence or national security; and

(b) the Governor, acting after consultation with the Executive Council, certifies in

writing that the confidentiality of the solicitation and contract are necessary to

protect the national interest.

Purposes of Act

4. The purposes of this Act and the regulations are to simplify, clarify and modernize

procurement and to make procurement by the Government transparent and more particularly to—

(a) require public competition in the procurement process except to the extent that the

circumstances or size of the procurement make it impracticable;


(b) foster and encourage broad participation in the procurement process by persons in

Anguilla;

(c) provide for increased public confidence in the Government procurement process

by maintaining safeguards to ensure its fairness, openness and transparency;

(d) ensure fair treatment of all persons who participate in the procurement process;

and

(e) ensure the best value is obtained for the procurement dollar.

Procurements exempt under the Act

5. (1) The following procurements maybe exempted from this Act—

(a) a procurement made under a co-operative procurement agreement;

(b) a procurement, the funding for which, or part of the funding for which, is

furnished to the Government by another government or by an international or

regional agency, whether the funding is by loan, donation or otherwise, on the

condition or on the understanding that the procurement procedures of the other

government or international or regional agency, or procurement procedures

approved or agreed to, by the government or international or regional agency will

be used.

(2) Subject to the regulations for the maintenance of procurement files, the following

procurements are exempted from this Act—

(a) banking services;

(b) the procurement of fiscal agency or depository services or services related to the

sale, redemption and distribution of public debt, including loans and government

bonds, notes and other securities;

(c) the procurement of media and media-related services such as the purchase of

television or radio time or production capacity;

(d) travel services and hotel accommodation;

(e) works of art, objects of historical or cultural interest or performances of cultural

interest;

(f) the procurement of specified professional services; and

(g) a procurement for casual hospitality or catering services in an amount not

exceeding $6,500 or such other amount as may be prescribed.

Artificial division of solicitations prohibited

6. (1) No solicitation shall be artificially divided, including artificially divided so as to be

solicited—

(a) as an exempt procurement under section 5(2)(g);


(b) so as to avoid the effect of an amount prescribed under the regulations by any

means including—

(i) 2 or more competitive quotations rather than a competitive sealed bid or

competitive sealed proposal,

(ii) 2 or more small emergency solicitations rather than a large emergency

solicitation, or

(iii) 2 or more small sole source solicitations rather than a large sole source

solicitation.

(2) A procurement shall be considered to be artificially divided if its only or primary

purpose is to achieve one of the objectives set out in subsection (1).

PART 2

ORGANIZATION OF GOVERNMENT PROCUREMENT

Establishment of Procurement Unit

7. There is established a Procurement Unit in the Ministry with responsibility for

procurement.

Appointment of Chief Procurement Officer and staff

8. (1) There shall be appointed a Chief Procurement Officer who shall be the head of the

Procurement Unit.

(2) There may be appointed a Deputy Chief Procurement Officer and such additional staff

as are necessary for the due administration of this Act.

(3) The Chief Procurement Officer may, after consultation with the Permanent Secretary,

delegate the performance of his or her duties or the exercise of his or her powers to any public

officer who reports to him or her.

General duties and powers of Chief Procurement Officer

9. (1) In addition to his or her other duties and powers under this Act, the Chief Procurement

Officer shall—

(a) provide advice to departments, the Board, the Permanent Secretary, the Minister

and any other relevant stakeholder on procurement policy and practice;

(b) monitor the operation of this Act and the regulations and report thereon to the

Board and the Minister;

(c) foster the development of procurement professionals;

(d) after consultation with procurement authorities and such other persons as the

Chief Procurement Officer or the Board considers appropriate, prepare or cause to

be prepared—


(i) standard solicitation documents for the solicitation of works, goods and

services or classes of works, goods or services in relation to procurements

equal to or greater than the prescribed value, and in relation to procurements

less than the prescribed value, and

(ii) amendments of general application to or replacements of standard solicitation

documents or classes of standard documents, for submission to the Board for

approval under section 34(1)(a);

(e) after consultation with the Permanent Secretary, procurement authorities and other

relevant stakeholders; develop and periodically update a procurement manual for

use by all persons involved in the solicitation and award of contracts including

procurement authorities, but such procurement manual shall not be operational

unless approval is granted by the Board;

(f) subject to the written approval of the Governor in Council, may enter into

contracts with any government agency or other statutory body, other than a

government agency referred to in paragraph (g), to procure or, with the consent of a

procurement authority, to have a procurement authority procure, works, goods or

services or a class or classes of works, goods or services on its behalf and may charge

the fee agreed on for such services by the statutory body or prescribed by regulation;

(g) when provided by regulation, shall—

(i) procure or arrange for a procurement authority to procure, specified works,

goods or services or a specified class or classes of works, goods or services

on behalf of designated government agencies, and

(ii) require payment of fees by the designated government agency for the

procurement services provided by or through the Procurement Unit; and

(h) perform such other duties and exercise such other powers in relation to

procurement as are assigned to him or her by the Board.

Procurement authorities

10. (1) Subject to subsections (2) and (3), the head of the department for which a procurement

is to be made is the procurement authority responsible for that procurement.

(2) The head of a department, the Chief Procurement Officer or a public officer who

heads part of a department designated by the Board under section 34(1)(c) in relation to a class of

restricted procurements is the procurement authority responsible for that class of restricted

procurements.

(3) When a procurement that is not within a class of restricted procurements under

subsection (2) involves more than one procurement authority, the procurement authority that is

appointed by the Board under section 34(1)(d) in relation to the procurement is the procurement

authority.

(4) Notwithstanding that the Board has designated the head of a department, the Chief

Procurement Officer or a public officer who heads part of a department as the procurement

authority responsible for a class of restricted procurements, the head of a department, Chief


Procurement Officer or the chief official of a part of a department may, subject to the regulations

and any directions of the Board, delegate in writing on an occasional basis the making of a

particular restricted procurement to another procurement authority when it is necessary to avoid

serious inconvenience to a department.

(5) A procurement authority may delegate his or her authority or part of his or her

authority, other than the authority to make a restricted procurement, to any other procurement

authority and, when he or she does so, shall, if the procurement authority or delegate is other than

the Chief Procurement Officer, give notice in writing of that fact to the Chief Procurement

Officer and the Board.

PART 3

SOLICITATION PROCEDURES AND AWARDS OF CONTRACTS

Division 1

Solicitation Procedures

Requirements for all procurements

11. All procurements shall be made in accordance with this Act.

Estimate of amount of contract award and breakdown

12. Before commencing a solicitation, the procurement authority shall ensure that—

(a) except where the regulations provide otherwise, an estimate of the amount of the

contract award for the procurement has been prepared; and

(b) a breakdown of the estimate is made—

(i) in the case of a contract for works, between—

(aa) the construction, reconstruction, erection, installation, repair, renovation,

extension or demolition of a building, structure or works, and

(bb) services such as mapping, drilling, soil testing, site preparation,

excavation, demolition, maintenance and other similar activities

furnished in connection therewith;

(ii) in the case of a contract for goods, between—

(aa) tangible personal property and software, and

(bb) services incidental to the supply of those goods.

Solicitations by competitive sealed bids to be default procedure

13. A procurement shall be made by soliciting competitive sealed bids unless the procurement

authority, with the approval of the Chief Procurement Officer, determines that the procurement

may be made by another solicitation procedure.


Solicitations by competitive sealed proposals

14. (1) A procurement may be made by soliciting competitive sealed proposals only when the

procurement authority, with the approval of the Chief Procurement Officer, determines that it is

not practicable or advantageous to make the procurement by soliciting competitive sealed bids.

(2) Whether a solicitation by competitive sealed bids is practicable relates to such factual

circumstances as whether there is sufficient time or information to prepare an invitation for bids.

(3) Whether a solicitation by competitive sealed bids is advantageous relates to such

matters as whether quality, availability or capability are overriding in relation to price.

Large sole source solicitations

15. A large sole source solicitation may be made by a procurement authority after complying

with the requirements of the regulations respecting large sole source solicitations.

Small sole source solicitations

16. A small sole source solicitation may be made by a procurement authority when it is not

reasonably practicable to make the small procurement except from a single source as determined

by the Chief Procurement Officer.

Emergency solicitations

17. (1) An emergency solicitation may be made when the Board determines —

(a) that there exists a threat to public health, welfare or safety by reason of an

emergency condition and the procurement is for the purpose of eliminating or

mitigating the threat; or

(b) that—

(i) the procurement is urgently required in the public good, and

(ii) urgency justifies a less stringent competitive procedure than would otherwise

apply;

and, in either case, the Board shall determine what competitive procedure in making

the procurement, if any, is most appropriate in the circumstances.

(2) In making a determination under subsection (1), the Board shall have regard to the

purposes of this Act as set out in section 4 and shall consider the relevant circumstances—

(a) the time and resources required to prepare, or complete the preparation of, an

invitation for bids or an invitation for proposals;

(b) the time required to permit solicitation by competitive sealed bids or competitive

sealed proposals;

(c) in the case of a procurement referred to in subsection (1)(b)—

(i) the degree of urgency in making the procurement and the damage to, or

additional damage to, the public good that would likely ensue from delaying


the procurement to permit the solicitation referred to in paragraph (b) to take

place; and

(ii) the time required if a less stringent competitive procedure were adopted and

the damage to, or additional damage to, the public good that would likely

ensue if that less stringent procedure was followed.

(3) An emergency solicitation may be a large emergency solicitation or a small

emergency solicitation.

Solicitations equal to or exceeding the prescribed amount

18. (1) When the estimate of the amount of a contract award for a procurement is equal to or

exceeds the prescribed amount, the solicitation for the procurement shall be made by competitive

sealed bids or competitive sealed proposals or as an emergency solicitation or large sole source

solicitation as determined by the procurement authority, with the approval of the Chief

Procurement Officer.

(2) When a procurement is solicited by competitive sealed bids or competitive sealed

proposals or as an emergency solicitation or large sole source solicitation even though the

estimate of the amount of the contract award for the procurement is less than the prescribed

amount, the solicitation is deemed to be a procurement by competitive sealed bids or competitive

sealed proposals or as an emergency solicitation or large sole source solicitation.

Solicitations less than the prescribed amount

19. When—

(a) the estimate of the amount of a contract award for a procurement is less than the

prescribed amount; and

(b) the procurement is other than a procurement to which 18(2) applies,

the solicitation for the procurement shall be made by competitive quotations or as a small

emergency solicitation or small sole source solicitation as determined by the procurement

authority, with the approval of the Chief Procurement Officer.

Competitive quotations to be default procedure for small procurements

20. A small procurement shall be made by soliciting competitive sealed bids or competitive

sealed proposals unless the solicitation may be made as a small emergency solicitation or a small

sole source solicitation.

Confidential procurements

21. When a solicitation procurement is confidential under section 3, the procurement authority

may require the person or persons—

(a) from whom it proposes to request competitive sealed bids, competitive sealed

proposals or competitive quotations; or

(b) with whom it proposes to a deal in relation to a procurement to be made by large

emergency solicitation, large sole source solicitation, small emergency

solicitation or small sole source solicitation;


to enter into a confidentiality agreement in respect of a solicitation as are provided for in the

regulations or, in the absence of regulations, as the procurement authority considers appropriate.

Division 2

Notice of Competitive Sealed Bids or Proposals and Invitations to Prequalify and Opening of

Bids, Requests for Proposals and Applications to Prequalify

Notice of invitation for bids requests for proposals or to prequalify

22. (1) Subject to subsection (2), the Chief Procurement Officer, or a person employed in the

Procurement Unit and authorised by the Chief Procurement Officer for the purpose, shall, on the

direction of the procurement authority, publish notice of an invitation for bids, request for

proposals or invitation to prequalify for a solicitation by competitive sealed bids or competitive

sealed proposals, in the manner specified by the regulations for a period as determined by the

regulations before the day for the close of bids, proposals or applications to prequalify, as the case

may be.

(2) Notwithstanding subsection (1)—

(a) when applicants have been prequalified in respect of a solicitation by competitive

sealed bids or competitive sealed proposals, the Chief Procurement Officer is

required to give notice only to the applicants who prequalified;

(b) in the second stage of a two-stage bidding process or two-stage proposal process,

the Chief Procurement Officer is required to give notice only to the bidders or

offerors who submitted bids or proposals and qualified in the first stage.

Opening bids, proposals and applications to prequalify

23. (1) Bids, proposals and applications to prequalify for a solicitation by competitive sealed

bids or competitive sealed proposals shall be opened publicly—

(a) by the Chief Procurement Officer, or a person employed in the Procurement Unit

and authorised by the Chief Procurement Officer for the purpose, on the day and

at the time and place specified in the invitation for bids, request for proposals or

invitation to prequalify, as the case may be; and

(b) in the presence of at least one member of the Board or his or her designate and

any other persons who wish to be present, including—

(i) any person who submitted a competitive sealed bid or a competitive sealed

proposal or application to prequalify, and

(ii) any member of the public.

(2) In the case of bids referred to in subsection (1), the Chief Procurement Officer, or a

person employed in the Procurement Unit and authorised by the Chief Procurement Officer for

the purpose, shall read aloud—

(a) the name and address of each bidder; and


(b) the amount of his or her bid or, when there is more than one amount in the bid,

each amount bid.

(3) In the case of proposals referred to in subsection (1), the Chief Procurement Officer,

or a person employed in the Procurement Unit and authorised by the Chief Procurement Officer

for the purpose, shall—

(a) read aloud the name and address of each offeror; and

(b) refrain from disclosing any other information contained in the proposal.

(4) In the case of applications to prequalify for a solicitation by competitive sealed bids or

competitive sealed proposals referred to in subsection (1), the Chief Procurement Officer, or a


the purpose, shall—

(a) read aloud the name and address of each applicant; and

(b) refrain from disclosing any other information contained in the application.

(5) In the case of a two-stage bidding process or two-stage proposal process, the Chief

Procurement Officer, or a person employed in the Procurement Unit and authorised by the Chief

Procurement Officer for the purpose, shall—

(a) in the first stage of a two-stage bidding or proposal process—

(i) read aloud only the name and address of each bidder or offeror, and

(ii) refrain from disclosing any other information contained in the bid or

proposal;

(b) in the second stage of a two-stage bidding process read aloud—

(i) the name and address of each bidder; and

(ii) the amount of the bid or, when there is more than one amount in the bid, each

amount bid; and

(c) in the second stage of a two-stage proposal process—

(i) read aloud the name and address of each offeror, and

(ii) refrain from disclosing any other information contained in the proposal.

(6) In the case of a two-envelope bidding process or two-envelope proposal process, the

Chief Procurement Officer, or a person employed in the Procurement Unit and authorised by the

Chief Procurement Officer for the purpose, shall—

(a) when the first envelope is opened—

(i) read aloud the name and address of each bidder or offeror, and



proposal;

(b) in the second stage of a two-envelope bidding process read aloud—


(ii) the amount of his or her bid or, when there is more than one amount in the

bid, each amount bid; and




Notice of invitation for bids or proposals or to prequalify that is confidential

24. (1) Subject to subsections (2) and (3), the Chief Procurement Officer, or a person

employed in the Procurement Unit and authorised by the Chief Procurement Officer for the

purpose, shall, on the direction of the procurement authority, give notice of an invitation for bids

or proposals or an invitation to prequalify for a solicitation by competitive sealed bids or

competitive sealed proposals that is confidential under section 3—

(a) in the manner specified by the regulations for the period determined under the

regulations before the day for the close of bids or proposals or application to

prequalify, as the case may be; and

(b) to as many potential bidders, offerors or applicants as practicable who satisfy the

requirements of the Chief Procurement Officer under subsection (2).

(2) When he or she considers it appropriate, the Chief Procurement Officer may require

potential bidders, offerors or applicants for prequalification to enter into a confidentiality

agreement in respect of a solicitation or application or to comply with such requirements in

relation to confidentiality as are provided for in the regulations or, in the absence of regulations,

as he or she considers appropriate.

(3) Notwithstanding subsection (1)—

(a) when applicants have been prequalified in respect of a solicitation by competitive

sealed bids or competitive sealed proposals, the Chief Procurement Officer is

required to give notice only to the applicants who prequalified; and

(b) in the second stage of a two-stage bidding process or two-stage proposal process,

the Chief Procurement Officer is required to give notice only to the bidders or

offerors who submitted bids or proposals and qualified in the first stage.

Opening bids, proposals and applications to prequalify that are confidential

25. (1) Bids, proposals or applications to prequalify by competitive sealed bids or competitive

sealed proposals that are confidential under section 3 shall be opened in private—


(a) by the Chief Procurement Officer, or a person employed in the Procurement Unit

and authorised by the Chief Procurement Officer for the purpose, on the day and

at the time and place specified in the invitation for bids, the request for proposals

or the invitation to prequalify, as the case may be; and

(b) in the presence of at least one member of the Board or his or her designate.

(2) An opening is in private if the only persons present or able to hear or see are—

(a) the Chief Procurement Officer and persons employed in the Procurement Unit and

authorised by the Chief Procurement Officer to be present;

(b) the procurement authority or an authorised representative of the procurement

authority; and

(c) any member of the Board or his or her designate and the secretary to the Board.

(3) In the case of bids referred to in subsection (1), the Chief Procurement Officer, or a


the purpose, shall read aloud—

(a) the name and address of each bidder; and

(b) the amount of the bid or, when there is more than one amount in the bid, each

amount bid.

(4) In the case of proposals referred to in subsection (1), the Chief Procurement Officer,

or a person employed in the Procurement Unit and authorised by the Chief Procurement Officer

for the purpose, shall—

(a) read aloud the name and address of each offeror; and

(b) refrain from disclosing any other information contained in the proposal.

(5) In the case of an application to prequalify for a solicitation by competitive sealed bids

or competitive sealed proposals referred to in subsection (1), the Chief Procurement Officer, or a


the purpose, shall—

(a) read aloud the name and address of each applicant; and

(b) refrain from disclosing any other information contained in the application.

(6) In the case of bids or proposals referred to in subsection (1) in a two-stage bidding

process or two-stage proposal process the Chief Procurement Officer, or a person employed in the

Procurement Unit and authorised by the Chief Procurement Officer for the purpose, shall—

(a) in the first stage of a two-stage bidding or proposal process—

(i) read aloud only the name and address of each bidder or offeror, and



proposal;

(b) in the second stage of a two-stage bidding process read aloud—


(ii) the amount of the bid or, when there is more than one amount in the bid, each

amount bid; and

(c) in the second stage of a two-envelope proposal process—



(7) In the case of bids or proposals referred to in subsection (1) in a two-envelope bidding

process or two-envelope proposal process, the Chief Procurement Officer, or a person employed

in the Procurement Unit and authorised by the Chief Procurement Officer for the purpose, shall—

(a) when the first envelope is opened—

(i) read aloud the name and address of each bidder or offeror, and


proposal;

(b) in the second stage of a two-envelope bidding process read aloud—


(ii) the amount of his or her bid or, when there is more than one amount in the

bid, each amount bid; and




Division 3

Award of Contract

Award of contract after competitive sealed bids

26. (1) A contract for a procurement that is awarded after a solicitation by competitive sealed

bids shall be awarded by the Board to the bidder—

(a) who is determined to be a responsible bidder and is determined not to be

disqualified under the regulations; and


(b) who—

(i) is determined to have submitted the lowest responsive evaluated bid; or

(ii) is determined to have submitted the lowest responsive evaluated proposal that

meets the requirements of a local preference policy or a policy to set aside a

procurement as an incentive to the development of local business when such

policy is established by regulation and applied to the solicitation.

(2) For the purposes of paragraph (1)(b), “evaluated” means evaluated in accordance with

objective evaluation criteria set out in the invitation for bids to determine if the works, goods or

services meets the description of what is being procured.

Award of contract after competitive sealed proposals

27. (1) A contract for a procurement that is awarded after a solicitation by competitive sealed

proposals shall be awarded by the Board to the offeror—

(a) who is determined to be a responsible offeror and is determined not to be

disqualified under the regulations; and

(b) who—

(i) is determined to have submitted a proposal that is responsive and that, after

being evaluated in accordance with the request for proposals, is capable of

acceptance; or

(ii) is determined to have submitted the lowest responsive evaluated proposal that

meets the requirements of a local preference policy or a policy to set aside a

procurement as an incentive to the development of local business when such

policy is established by regulation and applied to the solicitation; and

(c) who is determined to have submitted the best and final offer that is determined to

be most advantageous to the Government after—

(i) discussions with offerors whose proposals comply with paragraph (a) and (b),

and

(ii) such offerors are given an opportunity to revise their proposals on a fair basis,

when and to the extent that such discussions with offerors, revision of proposals and

submission of best and final offers are provided for in the request for proposals.

(2) For the purposes of subsection (1)(b), “evaluated” means evaluated in accordance with

evaluation criteria set out in the request for proposals relating to the relative importance of such

matters as quality, availability and capability in relation to price.

(3) No person conducting or privy to discussions with an offeror shall disclose any

information derived from a proposal or discussions with any offeror to any other offeror directly

or indirectly or to any other person except when that person needs to know to perform his or her

functions.


(4) Offerors shall be accorded fair and equal treatment with respect to any opportunity for

discussions, revision of proposals and submission of best and final offers.

Award of contract after emergency solicitation

28. (1) The Board shall award a contract for an emergency solicitation referred to in section

17(1)(a) or (b) but where the Board considers that it is reasonable to do so, the Board may allow a

procurement authority to award a small emergency solicitation.

(2) A contract for a procurement that is awarded after an emergency solicitation referred

to in section 17(1)(a) or (b) shall be awarded by the Board to the person who is determined—

(a) to be responsible and not to be disqualified under the regulations; and

(b) to be the most appropriate, based on the results of the competitive procedure, if

any, that the Board determined under section 13 to be most appropriate in the

circumstances.

Award of contract after large sole source solicitation

29. A contract for a procurement that is awarded after a large sole source solicitation shall be

on the best terms that can be negotiated in the circumstances and shall be awarded by the Board

to the person who is determined not to be disqualified under the regulations.

Award of contract after solicitation by competitive quotations

30. (1) A contract for a small procurement that is awarded by the procurement authority after

a solicitation by competitive quotations shall be awarded to the person who is determined—

(a) to be responsible and not to be disqualified under the regulations; and

(b) to have submitted the lowest responsive evaluated quotation.

(2) For the purposes of subsection (1), “evaluated” means evaluated in accordance with

the evaluation criteria, if any, set out in the request for quotations.

Award of contract after small sole source solicitation

31. A contract for a small procurement that is awarded after a small sole source solicitation

shall be on the best terms that can be negotiated in the circumstances and shall be awarded by the

procurement authority to the person who is determined not to be disqualified by the regulations.

Award when small procurement contract equals or exceeds the prescribed amount

32. When a procurement is solicited in good faith by competitive quotations, as a small

emergency solicitation or a small sole source solicitation and the amount of a proposed contract

will be equal to or exceed the prescribed amount, the contract may be awarded by the Board as if

it had been a solicitation by competitive sealed bids or competitive sealed proposals, a large

emergency solicitation or a large sole source solicitation.


PART 4

PROCUREMENT BOARD

Procurement Board established

33. (1) The Procurement Board is established.

(2) The Board shall consist of 7 members appointed by the Governor in Council in the

following manner—

(a) 6 members shall be public officers; and

(b) 1 member must be a private citizen.

(3) Schedule 1 has effect with regard to the constitution, operation and procedures of the

Board.

Duties and powers of the Board

34. (1) Subject to this Act, the Board, in addition to any duties or powers assigned to it under

this Act, has the authority over the administration of Government procurement and, without

limitation, has authority to—

(a) approve—

(i) standard solicitation documents for use in the solicitation of works, goods,

services or a class or classes of works, goods, services or works to which they

relate, or

(ii) amendments of general application to and replacements of standard

solicitation documents;

(b) approve a procurement manual and approve the amendment or replacement of the

procurement manual;

(c) for the purposes of section 10(2), establish classes of restricted procurements and

designate the head of a department, the Chief Procurement Officer or the public

officer who heads part of a department as the procurement authority in relation to

each class of restricted procurements;

(d) for the purposes of section 10(3), appoint one procurement authority when a

procurement involves more than one procurement authority;

(e) subject to the regulations, give directions referred to in section 10(4) respecting

the delegation on an occasional basis of a restricted procurement or class of

restricted procurements to another procurement authority;

(f) approve each solicitation by competitive sealed bids or competitive sealed

proposals and emergency or large sole source solicitation in advance of its issue;


(g) make an award of contract under section 26, 27, 28, 29 or 32;

(h) subject to this Act and the regulations, make policies in relation to any aspect of

procurement and the administration of contracts, including policies in relation to

matters requiring the approval of the Board such as—

(i) material changes to standard solicitation documents,

(ii) cancellation of solicitations; or

(iii) rejection of all submissions;

(i) give directions to a procurement authority in respect of making any solicitation or

administering a contract; and

(j) perform the duties and exercise the powers conferred on the Board under the

regulations;

(k) provide advice that is requested by the Minister but such advice shall not contain

information pertaining to the deliberations of the Board.

(2) A class of restricted procurement may be established on the basis of the type, value,

solicitation method or any other characteristic of the procurement.

(3) Subject to Schedule 1, the Board may make rules governing its procedure.

PART 5

SUSPENSION AND DEBARMENT

Definition

35. In this Part—

“person” means a person who participates, seeks to participate, or has participated in, a

procurement in Anguilla;

“appointed person” means a person appointed by the Board under section 37(1) to conduct

proceedings for debarment or suspension.

Grounds of suspension or debarment

36. The Board may suspend or debar a person from public procurement if the Board is

satisfied that a person has—

(a) been convicted under the laws of any country involving corruption, theft,

embezzlement, forgery, bribery, falsification or destruction of records or other

similar offences that calls into serious question the honesty of the person;

(b) in or in relation to a submission made in Anguilla, has provided false or

misleading information or has failed to disclose material information respecting

whether he or she is a responsible contractor;


(c) violated the code of conduct as provided for under section 46; or

(d) committed or been associated with any other conduct that any reasonable person

considers would bring the administration of public procurement into disrepute.

Procedure for suspension or debarment

37. (1) Where the Board is satisfied that sufficient evidence exists to debar or suspend a

person, the Board may instruct the Chief Procurement Officer or any appointed person to

commence proceedings using the procedure under subsection (2).

(2) Proceedings for debarment or suspension must commence by serving a notice which

sets out—

(a) the grounds for suspension or debarment;

(b) the terms of the proposed suspension or debarment;

(c) the period of time from the date of service within which a written response or

submissions may be made but such period of time must be no more than 28 days

from the date of service; and

(d) a statement indicating that the person has the right to—

(i) have an oral hearing before the Chief Procurement Officer or the appointed

person; and

(ii) request the evidence on which the Board relies for the suspension or

debarment of the person.

(3) The Chief Procurement Officer or the appointed person may extend the time under

subsection (2)(c) for up to 14 more days after the expiration of the 28th day from the date of

service.

(4) The Chief Procurement Officer or the appointed person must, on the request of the

person, disclose the evidence on which the Board relies for the suspension or debarment.

(5) The Chief Procurement Officer or the appointed person must report their findings and

recommendations to the Board in a manner and at a time which is determined by the Board but

such reporting must take place after any procedure adopted under subsection (2) has concluded or

if the person having been served does not respond within the specified time period.

(6) the Board may, in accordance with subsection (7), debar or suspend a person from

being eligible to make any submission in relation to a solicitation issued, or from being awarded a

contract, under this Act.

(7) The Board may—

(a) suspend the person for a period of not more than three months, or

(b) debar the person for a period of not more than three years;


(8) The Chief Procurement Officer must serve a written notice on the person—

(a) setting out the Board’s decision and the reasons for it; and

(b) indicating that the person may appeal under section 38.

Appeal

38. (1) A person may appeal the decision of the Board by filing a notice of appeal of

suspension or debarment in the High Court not later than 14 days after service of the notice of the

decision of the Board referred to in section 37(6).

(2) A notice of appeal given under subsection (1) must set out—

(a) the name of the appellant;

(b) concisely the decision appealed against; and

(c) concisely the grounds on which the appellant wishes to appeal against the

decision.

(3) A person who files a notice of appeal under subsection (1) must immediately serve a

copy of the notice of appeal on the Chairperson of the Board who must immediately on receipt of

the notice deliver to the Permanent Secretary and the Attorney General—

(a) a copy of the notice of appeal;

(b) a copy of the decision appealed against;

(c) the report of the findings of Chief Procurement Officer or the appointed person

under section 37(5); and

(d) all papers and documents submitted by the appellant to the Chief Procurement

Officer and the Board during the tenure of the matter on appeal.

Order suspending effect of decision of the Board

39. (1) A person who has filed an appeal under section 38 may apply to the High Court to

suspend the decision of the Board.

(2) The appellant must immediately serve the application filed under subsection (1) on the

Chairperson of the Board who must immediately on receipt of the notice deliver a copy to the

Permanent Secretary and the Attorney General.

(3) The High Court may order the suspension of the decision of the Board on such

conditions as the High Court considers appropriate or may refuse to grant the order.

(4) The decision of the High Court under subsection (3) is final and binding and not

subject to further appeal.


Order of High Court

40. (1) The High Court may make such orders on the hearing of the appeal, including an

order for payment of costs on the appeal, as it considers appropriate.

(2) The decision of the High Court under subsection (1) is final and binding and not

subject to further appeal.

PART 6

MISCELLANEOUS

Regulations

41. (1) The Governor in Council may make regulations for the better administration of this

Act, including regulations—

(a) prescribing anything that may be prescribed under this Act;

(b) exempting services for the purposes of the definition of “services” in section 1;

(c) providing for any other capacities for the purposes of section 1(3)(g);

(d) excluding any financial interest or class of financial interest for the purposes of

section 1(3);

(e) exempting procurements for the purposes of section 5;

(f) for the purposes of section 9(g) and notwithstanding any other Act or regulation—

(i) designating government agencies and other statutory bodies;

(ii) specifying works, goods or services or a class or classes of works, goods or

services that are to be procured by the Chief Procurement Officer or by a

procurement authority, on behalf of a designated government agency;

(iii) requiring the payment by the designated government agency of a fee for such

services or any class of services and providing for the determination of such a

fee; and

(iv) making any supplementary provision that the Governor in Council considers

necessary in relation to regulations made under subparagraphs (i), (ii) and

(iii);

(g) establishing exceptions for the purpose of section 12(a);

(h) before a solicitation or class of solicitation is issued, requiring a pre-clearance

confirming that sufficient funds are available to make a procurement based on the

solicitation;

(i) specifying the manner in which notice of an invitation for bids, request for

proposals or invitation to prequalify is to be given and for what period before the


day for the close of bids, proposals or applications to prequalify when they are

confidential under section 3 and when they are not;

(j) provide for requirements in relation to confidentiality under section 3;

(k) respecting solicitations by competitive sealed bids, including defining or

determining the meaning of “responsible” and “disqualified” in relation to

“bidder” and the meaning of “lowest” and “responsive” in relation to a bid and

further defining “evaluated”;

(l) respecting solicitations by competitive sealed proposals, including defining or

determining the meaning of “responsible” and “disqualified” in relation to

“offeror” and the meaning of “responsive” in relation to a proposal and further

defining “evaluated”;

(m) respecting large emergency and small emergency solicitations, large sole source

solicitations and small sole source solicitations including defining or determining

the meaning of “disqualified”;

(n) respecting solicitations by competitive quotations, including defining or

determining the meaning of “responsible” and “disqualified” in relation to a

person who submits a quotation and the meaning of “lowest” and “responsive” in

relation to a quotation and further defining “evaluated”;

(o) respecting the cancellation of a solicitation;

(p) respecting the evaluation of solicitations;

(q) respecting the award of contracts;

(r) respecting the rejection of submissions;

(s) respecting the course of action to be taken in the event that an award of contract

cannot be made or an award of contract is made and the person to whom it is

made fails to furnish a performance security or execute a formal or other

agreement;

(t) respecting formal agreements and determining when and what type of formal

agreement is necessary;

(u) respecting the application of the rules relating to procurement when a contract of

procurement is breached, frustrated or any other similar situation arises;

(v) respecting the maintenance of procurement files;

(w) establishing a local preference policy for the award of contracts for goods,

services or works or classes of goods, services or works;

(x) establishing a policy for setting aside procurement or classes of procurement for

local businesses as an incentive to the development of local business;


(y) respecting contract administration including the role of the Board and public

officers therein;

(z) respecting generally the confidentiality of solicitations, invitations to prequalify,

awards of contract, particulars of contract performance and other information and

documents;

(aa) respecting the procedure to be followed before the Board and the High Court on

appeal in relation to a suspension or debarment of bidders, offerors and other

persons who have participated or propose to participate in procurement;

(ab) amending or replacing Schedule 1 or 2;

(ac) defining any term used but not defined in the Act;

(ad) respecting the establishment and governance of stores.

(2) No provision of a regulation shall amend the Act, except to the extent expressly

permitted in subsection (1).

Regulations to be laid before the House of Assembly

42. (1) All regulations must be laid before the House of Assembly as soon as they are made

and, if within 21 days beginning with the day on which such regulations are laid, the House of

Assembly resolves that the regulations be annulled, they shall cease to have effect but without

prejudice to anything previously done thereunder or to the making of new regulations.

(2) In determining the period of 21 days specified in subsection (1), no account shall be

taken of any time during which the House of Assembly is dissolved or prorogued.

Procurement Policy Advisory Committee

43. (1) The Governor in Council may, after consultation with the Board, appoint a

Procurement Policy Advisory Committee.

(2) The Chief Procurement Officer is an ex officio member of any Procurement Policy

Advisory Committee appointed under subsection (1).

(3) The Policy Advisory Committee will be responsible for developing any policy

position in relation to matters determined by the Governor in Council.

(4) The Procurement Policy Advisory Committee may conduct its affairs using the

procedure of the Board under Schedule 1 to the Act.

(5) The Governor in Council may remunerate the members of the Policy Advisory

Committee for carrying out their duties assigned under subsection (3).

Procurement Ombudsman

44. (1) The Minister may request that the Governor in Council appoint a Procurement

Ombudsman to investigate any complaint made in relation to an award of contract.

(2) The terms of the appointment shall be determined by the Governor in Council.


(3) A Procurement Ombudsman must only be appointed to investigate a complaint that

arises after the award of a contract.

(4) The following persons are disqualified from being appointed as Procurement

Ombudsman—

(a) a member of the House of Assembly;

(b) a person who is an undischarged bankrupt;

(c) a person who has been convicted of an indictable office or an offence involving

dishonesty.

Investigating a complaint

45. (1) A person may file a complaint only after the award of the contract to which the

complaint relates.

(2) In conducting an investigation, the Procurement Ombudsman may—

(a) review and assess the policies and practices of the procurement unit, any

procurement authority and the Board;

(b) request from the procurement unit, any procurement authority or the Board all

documents that the Procurement Ombudsman considers relevant towards

conducting the investigation; and

(c) conduct interviews with all persons deemed relevant to the matter.

(3) In performing his or her duties or exercising his or her powers, the Procurement

Ombudsman shall not be subject to the direction or control of any person or authority.

(4) The Procurement Ombudsman must, within the appointed period, provide the

Governor in Council with his or her findings and any recommendations.

(5) The Procurement Ombudsman shall not in respect of a complaint recommend the

cancellation of a contract award to which the complaint relates.

Development of a code of conduct

46. (1) The Minister may develop a code of conduct which defines the ethical standards of

persons participating in procurement.

(2) A Code of Conduct under subsection (1) becomes operational on the approval of the

Governor in Council.

Immunity

47. (1) No action for damages may be commenced against—

(a) the Board;


(b) any member of the Procurement Policy Advisory Committee or any other member

of a committee established under this Act;

(c) a public officer;

(d) an agent of the Government; or

(e) the Procurement Ombudsman;

for anything done or not done by that person in good faith while performing that person’s

functions under this Act.

(2) Subsection (1) does not, by reason of section 4(1) and (4) of the Crown Proceedings

Act, relieve the Crown of liability in respect of a tort committed by any person referred to in

subsection (1) to which the Crown would otherwise be subject and the Crown is liable under that

Act for any such tort in a like manner as if subsection (1) had not been enacted.

Limitation on court proceedings

48. In proceedings under this Act or the regulations in relation to a solicitation or the

evaluation or award of contract or the decision not to award a contract, no court shall have the

power to order any remedy other than an award of damages to a person who made, sought to

make, or would have wished to make, a submission if a contract in relation to which the damages

arose has been entered into.

Citation

49. This Act may be cited as the Public Procurement and Contract Administration Act, 2011.

Commencement

50. This Act or any provision of this Act shall come into force on a date appointed by the

Governor by notice published in the Gazette.

Transitional Provisions

51. (1) The Governor in Council may make regulations providing for any transitional matter

arising as a consequence of the coming into force of this Act or a provision of this Act and may

make the regulations retroactive to the day this Act comes into force or, if all of the provisions of

this Act do not come into force on the same day, to any day after this Act comes into force.

(2) This Act does not apply to procurement conducted by the government prior to

commencement.


Consequential amendments

52. The Act set out in Column 1 of Schedule 2 is amended to the extent set out opposite in

Column 2 of that Schedule.

Speaker

Passed by the House of Assembly this day of , 2011.

Clerk of the House

_______


SCHEDULE 1

(section 33(1))

CONSTITUTION, OPERATION AND PROCEDURES

OF THE PROCUREMENT BOARD

CONSTITUTION AND OPERATION OF THE BOARD

Qualification and appointment of Board members

1. (1) The members of the Board shall be chosen from among persons experienced or having

knowledge in public administration; finance, accounting; engineering; law, management, building and

construction technology and policy studies.

(2) Each member shall be appointed for a term not exceeding 2 years.

(3) A previous appointment as a member does not affect a person’s eligibility to be re-appointed as

a member.

(4) A notice of the appointment of a member shall be published without delay in the Gazette after

the appointment.

(5) The Board is deemed to be properly constituted notwithstanding that there is a vacancy on the

Board or a defect in the appointment of a member, other than a disqualification referred to in subsection

(7).

(6) The Permanent Secretary may appoint a person who has the requisite qualification to act in the

place of a member who is —

(a) absent from Anguilla; or

(b) unable to act.

(7) A person is disqualified from being appointed and from remaining a member if the person—

(a) is under the age of 18 years;

(b) is a member of the House of Assembly;

(c) is an undischarged bankrupt;

(d) is of unsound mind;

(e) has been convicted of an offence involving fraud, corruption or dishonesty, whether in

Anguilla or outside; or

(f) has breached any code of conduct under this Act.

Chairperson, deputy chairperson, interim chairperson and secretary

3. (1) The Governor in Council shall appoint the chairperson, deputy chairperson and secretary from

among any public officer of the Board.


(2) In the absence of the chairperson and the deputy chairperson the remaining members shall

select an interim chairperson from among the public officers and the interim chairperson shall discharge the

duties and exercise the powers of the chairperson at a meeting.

(5) In the event of a tie vote, the chairperson has a second vote.

Quorum

4. A quorum of the Board is a majority of the members.

Decision of the Board

5. A decision of the majority of the members is a decision of the Board.

Board may hold meeting by signing resolution

6. (1) When all members of the Board sign a resolution, a meeting of the Board relative to the

resolution is deemed to have been held.

(2) The secretary shall insert the resolution in the minutes.

Electronic meetings

7. The Board may hold a meeting using a method of communication that permits all the members

participating to communicate with each other simultaneously, if all the members participating consent to

holding the meeting in that way.

Remuneration, expenses and allowances of members

8. (1) The members shall be paid such remuneration as may be determined by the Governor in

Council.

(2) The Board may—

(a) reimburse the reasonable expenses of members; or

(b) establish allowances for the reimbursement of reasonable expenses of members, incurred

in the course of the carrying out of their responsibilities as members.

Resignation and removal of members

9. (1) A member may at any time resign by giving written notice to the Minister and a resignation is

effective upon receipt of the notice by the Minister.

(2) The Governor in Council may, by written notice, remove a member from office if the

Governor in Council is satisfied that—

(a) the member has, without the consent of the Board, been absent from 3 or more

consecutive meetings of the Board;

(b) the member has an interest that is likely to affect prejudicially the exercise and

performance of his or her responsibilities as a member;

(d) the member is unable or unfit to carry out his or her responsibilities as a member; or

(c) it is in the public interest to do so.


(3) If a member resigns, is removed from his or her office or his or her office is vacated by death

prior to the expiry of the term for which he or she has been appointed, the Governor in Council may

appoint a new member to replace him or her.

(4) An appointment of a member under subsection (3) may be for the unexpired period of the term

of office of the member in whose place he or she is appointed.

PROCEDURES OF THE BOARD

Frequency, place, day and time of Board meetings

10. (1) The Board shall meet as often as may be necessary to perform its duties and exercise its

powers in an expeditious manner.

(2) A meeting of the Board shall be held on the days and at the times that the chairperson may

determine.

Notice of Board meeting

11. (1) The chairperson shall cause written notice of the place, day, time and agenda of a Board

meeting to be given to each member not less than 72 hours before the time the meeting is to be held.

(2) Notice shall be given to a member—

(a) handing a copy to the member or designate;

(b) leaving a copy with an adult at the office, place of business or place of residence of the

member or designate;

(c) emailing or faxing a copy to the member or designate at the member’s or designate’s

email address or fax number; or

(d) any other means approved by resolution of the Board.

Waiver of notice

12. A member may in writing waive notice of a meeting.

Decision of chairperson

13. The decision of the chairperson, deputy chairperson or interim chairperson presiding at a meeting is

final on the following matters—

(a) the agenda for a meeting;

(b) the conduct of the meeting; and

(c) the procedure for handling motions.

Committees

14. (1) The Board may appoint committees to give advice to the Board.

(2) The Board shall appoint a member as chairperson of the committee.


(3) A committee may include persons other than members of the Board.

(4) Sections 3 to 12 apply, with the necessary changes, to a subcommittee.

Disclosure of financial interest

15. When a member of the Board or a committee—

(a) has any financial interest, or a financial interest in an entity that has a financial interest; or

(b) has a family member who has a financial interest; or a financial interest in an entity that

has a financial interest,

in any matter to be considered at a meeting of the Board or a committee and is in attendance at

a meeting of the Board or a committee at which the matter is to be discussed; shall before that

matter is considered by the Board or committee—

(c) disclose the nature of the financial interest to the Board or committee;

(d) withdraw from any meeting while the matter is being considered; and

(e) refrain from expressing any view or taking part in any vote concerning the matter.

Secretary to the Board

16. (1) The secretary shall provide administrative support to the Board, including—

(a) preparing the agenda for each meeting of the Board and giving notice of meetings that

include the agenda, the day, time and place of the meeting and the minutes of the previous

meeting to members or designates and to affected public officers and others whose

attendance is necessary or advisable;

(b) taking accurate minutes of each meeting of the Board, including—

(i) attendance by members;

(ii) any waiver of notice by a member;

(iii) whether a meeting referred to in section 7 was held and whether all members

participating in the meeting consented to it;

(iv) each resolution moved, the members present and voting for and against it or

abstaining from voting on it and whether the resolution was passed or defeated; and

(v) each disclosure made under section 14 and particulars of whether the member of the

Board or committee withdrew from the meeting while the matter was being

considered;

(c) inserting any resolution referred to in section 6 in the minutes;

(d) providing copies of minutes to members and to affected public officers;

(e) preparing the correspondence of the Board; and

(f) carrying out such other tasks in relation to procurement as are assigned to him or her by

the Board or the regulations.


(2) The secretary shall table for approval a copy of the minutes of a meeting at the next meeting of

the Board.

SCHEDULE 2

(section 52)

CONSEQUENTIAL AMENDMENTS

Financial Administration

and Audit Act, R.S.A. c F27

Extent of Amendment

section 6(1)(b) delete the words “procurement and”



section 8(3)(g) delete the words “procurement and”


section 68 delete paragraph g


OBJECTS AND REASONS

This Bill reforms the law relating to procurement of works, goods and services to comply with

generally accepted international standards of Government procurement (particularly 1994

UNCITRAL Model Law on Procurement of Goods, Construction and Services), which, among

other things, require public competition wherever reasonably possible and award of contract

based on fair competition. The general purposes of the Act are set out in section 4. (See

comments on that provision below.)

Part 1: Preliminary

Section 1 defines the key terms relevant to the scope of procurements, namely, “works”, “goods”

and “services”. Each of these definitions recognizes that a procurement is rarely a procurement

that is purely works or purely the acquisition of goods or purely services. Those categories

overlap. To ensure the integrity of the classification system in this situation, a solicitation or

contract for works, for example, if based on a breakdown of the estimate of costs, the services

component furnished in connection with the works does not exceed the value of works

component. A similar distinction is made in the definitions of “goods”. By its very nature in a

procurement of “services” goods furnished in connection with the services must not exceed the

value of the services.

Section 1 also defines the key forms of solicitations. Solicitations are divided into two classes,

large procurements, which are equal to or greater than an amount prescribed by regulation and

small procurements, which are less than the prescribed limit. The solicitation and award

procedures for large procurement and small are different. The procedure for small procurements

is much less formal and rigid in keeping with the large number and smaller amounts involved.

Large procurements are divided into four types depending on the procedure, namely, solicitations

by competitive sealed bids, solicitations by competitive sealed proposals, large emergency

solicitations and small sole source solicitations. Small solicitations are divided into three types,

solicitations by competitive quotations, small emergency solicitations and small sole source

solicitations. Certain refinements of large procurements are also identified, namely, “two-stage

bidding process”, “two-stage proposal process”, “two-envelope bidding process” and “two-

envelope proposal process” which vary the standard procedures for competitive sealed bids and

competitive sealed proposals.

Under section 3 solicitations for the purpose of national defence or national security, as

determined by the Governor, acting after consultation with Executive Council, are confidential.

Confidential procurements form an important exception to the public character of solicitations

under the Act.

Section 4 sets out the purposes of the Act and regulations, which are to increase transparency in

government procurement and more particularly, to depoliticize government procurement, to

increase the public’s confidence in the integrity of the procurement process, to ensure fair and

equitable treatment of persons participating in the procurement process and to get the best value

for the government’s procurement dollar. In practice, some trade-offs in these objectives will

obviously be necessary.

Section 5 provides for certain exemptions. Anguilla purchases drugs under an agreement with the

Eastern Caribbean Bank whereby several countries in the Caribbean pool their purchasing power.

Such a pooling agreement is called “co-operative procurement agreement” and is exempted from

the Act under section 5(1)(a). Section 5(1)(b) recognizes that funding agencies may wish to

determine the procurement process that will be used and accordingly exempts such procurements


from the Act. Section 5(2) lists a number of other exemptions. The exemption of specified

professional services, which are defined in section 1, should be particularly noted.

Section 6 is an anti-avoidance provision. It forbids the artificial division of procurements so as to

get around financial limits on exemptions and the restrictive procedures applicable to large

procurements.

Part 2: Organization of Government Procurement

Part 2 provides for the establishment of a Procurement Unit in the Ministry with responsibility for

procurement; the appointment of a Chief Procurement Officer as its head, and the appointment of

other staff (section 8).

Section 9 sets out the general duties and powers of the Chief Procurement Officer, which include

providing advice, fostering the development of procurement professionals, developing standard

form documents (for various classes of works, goods or services) and a procurement manual

(both in consultation with stakeholders) and maintaining lists of potential contractors. In

addition, the Chief Procurement Officer is given the power to purchase on behalf of a government

agency or other statutory body when it desires him or her to do so. When there are regulations

compelling a particular government agency to use the services of the Procurement Unit, that

government agency must use those services.

Section 10 identifies procurement authorities. The default procurement authority is the

department head (section 10(1)). The exceptions are as follows—

(1) Restricted Procurements: The head of a department, the Chief Procurement Officer or a

public officer who heads part of a department designated by the Board under section 34(1)(c) in

relation to a class of restricted procurements is the procurement authority responsible for that

class of restricted procurements. An example would be designating the head of the Information

Technology Department as the procurement authority for computers and peripherals, software

programs (other than bespoke software), scanners, fax machines, computer cabling and related

equipment. It is anticipated, for example, that the Board will restrict certain solicitations so that

classes of procurements will be consolidated into larger units and will be assigned to the area of

government with expertise in making such procurements. Typically, the Chief Procurement

Officer will consolidate into a small number of contracts the high volume low cost procurements

such as office supplies and paper, cleaning supplies, paper towels and toilet paper, which are

labour intensive to procure a bit at a time and where there is little advantage in terms of savings

unless they are bought in bulk. Departments are typically forbidden to procure such items

themselves. Other procurements that are restricted are office furniture, vehicles, vehicle parts,

tires, building supplies and related goods. If the supply contracts (often referred to as “standing

orders”) are appropriately set up for the foregoing procurements, such consolidation and

centralization of procurements need not lead to the accumulation of inventories that are expensive

to administer and are often accompanied by costly loss, unexplained disappearance or

obsolescence of, or damage to, goods. Typical modern contracts for these sorts of items provide

that the supplier warehouses the goods and delivers them to specified delivery points just in time

for their use. Indeed, the supplier who is responsible for warehousing goods and delivering them

on an as required basis should be the rule. Only items very difficult to obtain locally that may be

required on short notice should be in government stores.

One further matter should be noted. It is possible for the Board to make it so most procurements

are restricted procurements and to designate the Chief Procurement Officer as the procurement


authority (for all procurements not otherwise designated as restricted procurements), thereby

centralizing the procurement function.

(2) Procurements by Two or More Departments: When a procurement that is not within a

class of restricted procurements involves more than one procurement authority, the procurement

authority appointed by the Board under section 34(1)(d) in relation to the procurement is the

procurement authority.

Section 10(4) permits a procurement authority responsible for restricted procurements to delegate

a particular restricted procurement by delegating in writing on an occasional basis the making of

a restricted procurement to another procurement authority when it is necessary to avoid serious

inconvenience to a department.

Section 10(5) permits inter-delegation by procurement authorities.

The Bill is designed to make the Chief Procurement Officer and his or her staff in the

Procurement Unit the public face of the solicitation process (issue of notices of solicitation,

opening readings and recording of submissions).

Part 3: Procurement Procedures and Award of Contracts

Division 1: Solicitation Procedures

This Division sets out the possible solicitation procedures and when they can be used. All

procurements are required to be made in accordance with the Act (section 11).

Section 12 provides that an estimate of the amount of a contract award for each procurement shall

be made (except when a procurement is exempted by the regulations) and that a breakdown of the

estimate be made of certain costs relevant to determining whether a contract is a contract for

construction or the supply of goods.

In the following comments, each solicitation procedure and its matching award procedure are

commented on together, even though the latter provisions occur later in the Bill.

Section 20 provides that solicitation of a procurement by competitive sealed bids is the default

procedure that must be used unless one of the other procedures set out in Division 1 is more

appropriate. (Note that the Bill uses the more precise term “solicitation by competitive sealed

bids” instead of the term “tendering”.)

The corresponding award provision is section 26, which provides that, if a contract is awarded

after a solicitation by competitive sealed bids, the contract must be awarded to the bidder who is

determined by the Board to be the responsible bidder and determined not to be disqualified and

who submits the lowest responsive evaluated bid or, when a local preference policy or when a

policy to set aside the procurement as an incentive to the development of local business

established by regulation applies to the solicitation established by regulation applies to the

solicitation, to the responsible bidder who submits the lowest responsive evaluated bid that meets

the requirements of the policy.

A qualified bidder is one who has the resources to perform the contract and is in good

standing with the Government.


A responsive bid is one that offers what the bid documents request and conforms in all

material respects with those documents. If the bid documents request a car of a certain

kind and the bidder offers a truck, the bid is non-responsive and must be rejected.

Whether a bidder is responsible and his bid is responsive are usually quite straightforward. In

competitive sealed bids, the successful bidder will be determined primarily on amount bid after

the all bids have been evaluated in accordance with evaluation criteria set out in the bid

documents. These criteria must be objective. If there are no evaluation criteria in the bid

documents, then the price will determine the successful bidder. That often happens in the case of

construction.

The evaluation criteria for procuring goods is often more complicated. Consider the procurement

of vehicles. It is common knowledge that matters such as fuel consumption, maintenance costs

for the life of the vehicle and life span of vehicles vary greatly. They are also objective in the

sense that vehicles are routinely tested to determine such matters. Assume that the Government

wants to purchase a passenger vehicle of a particular description and one bidder offers a Toyota

for $22,000 and another offers a Dodge for $20,000. The Dodge is not necessarily the cheapest.

The cheapest will be determined after the evaluation criteria, fuel consumption, the life cycle

maintenance costs and life span, are factored in.

Solicitations by competitive sealed proposals and award of contract

Under section 14(1), a solicitation by competitive sealed proposals can be made if the

procurement authority, with the approval of the Chief Procurement Officer, determines that it is

not either practicable or advantageous to make the procurement by soliciting competitive sealed

bids. A solicitation by competitive sealed proposals will normally be for a procurement that is

equal to or exceeds the prescribed amount.

In order to determine whether solicitation by competitive sealed proposals is practicable, section

14(2) sets out the criteria, which includes the question of whether there is insufficient time or

information to prepare solicitation documents for competitive sealed bids. If there is not

sufficient time or information, then competitive sealed proposals is the appropriate procedure. In

order to determine whether solicitation by competitive sealed bids is advantageous, section 14(3)

sets out the criteria, which includes the question as to whether quality, availability or capability is

overriding in relation to price.

To take an extreme example, assume that the Government wants someone to design a particular

structure. If there is no one available in-house to design the project specifications, then preparing

solicitation documents for competitive sealed bids is not practicable. Note that, in a solicitation

by competitive sealed proposals, the Government is in effect asking the offerors to do much of

the work normally done by the Government in preparing the specifications and contract

documents. Likewise, the services of an architect or engineer who has just graduated would be

cheaper in terms of dollars, but an engineer with extensive experience would probably be cheaper

in the long run. In other words, capability would be overriding in relation to price and solicitation

by competitive sealed bids would not be advantageous. In this example, because it is neither

practicable nor advantageous to solicit the design services by competitive sealed bids, solicitation

by competitive sealed proposals is permitted.

The evaluation and award of contracts following solicitation by competitive sealed proposals are

also different from the other forms of solicitation. Since each proposal will be different, how the

proposals are to be evaluated needs to be set out in the request for proposals so that all the

offerors’ proposals will be fairly treated. Section 27 deals with the award of a contract following


a request for competitive sealed proposals. To be considered, an offeror, like a bidder in relation

to a solicitation by competitive sealed bids, must be qualified and must submit a responsive

proposal. The similarity stops there. The request for proposals must set out “evaluation criteria”

relating to the relative importance of such factors as quality, availability, capability and price (see

section 27(2)). The persons charged with doing the evaluation must scrupulously observe those

criteria in the evaluation process. That process may also permit negotiations, the opportunity to

revise proposals and to submit best and final offers (section 27(2) and (3)). To prevent an auction

of the contract (and therefore unfairness to the offerors), section 27(3) requires that dealings with

one offeror may not be disclosed to any other offeror and section (4) requires offerors shall be

accorded fair and equal treatment with respect to any opportunity for discussions, revision of

proposals and submission of best and final offers.

Large emergency solicitations and award of contract

Solicitations by competitive sealed bids and competitive sealed proposals require time to prepare

solicitation documents, issue notices, allow bidders to prepare their bids or offerors to prepare

their proposals and so on. When a procurement is required urgently because of an emergency

situation, the emergency solicitation procedure may be used.

It will be noted that determining that a solicitation is an emergency solicitation does not

necessarily eliminate the need for competition. Rather, it permits the adjustment of the level of

competition to the circumstances.

The first type of emergency, which may be described as a “true emergency”, is set out in section

17(1)(a) and permits the Board to determine that there exists a threat to public health, welfare or

safety by reason of an emergency condition and that the procurement is for the purpose of

eliminating or mitigating the threat. The solicitation must be conducted with such competition as

is practicable in the circumstances in the opinion of the Board.

The second type of emergency is set out in section 17(1)(b) and permits Board to determine

whether—

the procurement is urgently required in the public good,

that urgency justifies a less stringent competitive procedure than would otherwise

apply, and

the appropriate competition for the solicitation in the circumstances.

The Board needs to consider the circumstances that are set out in section 17(2) in making those

determinations.

Under section 28, the Board may award a contract for an emergency procurement to the person

who is determined by the Board to be responsible and not to be disqualified under the regulations

and who is determined to be the most appropriate, based on the results of the competitive

procedure, if any, that the Board determined under section 17.

Large sole source solicitations and award of contract

Under section 15, the procurement authority is authorized to make a large sole source solicitation

when it complies with the regulations. Under section 29, the Board may award a contract for a

large sole source procurement on the best terms that can be negotiated with the potential

contractor in the circumstances if the potential contractor is determined not to be disqualified

under the regulations.


Solicitations less than the prescribed amount

Section 19 provides that, when—

(a) the estimate of the amount of a contract award for a procurement is less than the

prescribed amount; and

(b) the procurement is other than a procurement to which 18(2) applies,

the solicitation for the procurement shall be made by competitive quotations or as a small

emergency solicitation or small sole source solicitation.

Competitive quotations and award of contract

Section 20 provides that a solicitation by competitive quotations is the default procedure for small

procurements. The procedure for competitive quotations will be set out in the regulations.

Small sole source solicitations and award of contract

Under section 16, the procurement authority is authorized to make a small sole source solicitation

when it is not reasonably practicable to make the small procurement except from a single source

as determined by the Chief Procurement Officer. It will be noted that this provision does not

parallel that for large sole source procurements.

Section 32 provides that a contract for a small procurement that is awarded after a small sole

source solicitation shall be on the best terms that can be negotiated in the circumstances and shall

be awarded by the procurement authority to the person who is determined not to be disqualified

by the regulations.

Division 2: Notice of Competitive Sealed Bids or Proposals and Invitations to

Prequalify and Opening of Bids, Proposals and Applications

This Division deals with the two cornerstones of a modern public procurement system, namely—

the requirement that notices of competitive sealed bids and competitive sealed proposals

and of invitations to prequalify for either of them are published so that all members of the

public can participate in the procurement process; and

the requirement that bids and proposals be opened in public and that relevant information

be read out to all in attendance at the opening.

The Bill makes an exception to both of these principles when the solicitation is confidential.

Confidentiality is limited to solicitations for national defence or national security that the

Governor certifies in writing need to be confidential (section 3).

The following is a summary of the provisions for notices of non-confidential solicitations by

competitive sealed bids or competitive sealed proposals or invitations to prequalify.

There are two exceptions—


when applicants have been prequalified after an invitation to prequalify, notice of the

solicitation is required to be given only to those who prequalified (section 22(2)(a);

when, in the second stage of a two-stage bidding process or two-stage proposal process,

notice of the solicitation is required to be given only to the bidders or offerors who

submitted bids or proposals in the first stage and have qualified at that stage (section

22(2)(b).

Section 23 provides for the opening of bids, proposals and applications to prequalify. Note that

the information that may be read out is different for bids, proposals and applications to

prequalify. For example, reading out amounts in proposals is forbidden. Since negotiations may

occur with offerors, reading out amounts proposed would undermine the duty to treat each offeror

fairly. The provision also deals with the opening of bids and proposals in a two-stage bidding

process or two-stage proposal process and in a two-envelope bidding process or two-envelope

proposal process.

Section 24 and 25 parallel sections 22 and 23 but provide different rules for notices of

confidential solicitations competitive sealed bids, competitive sealed proposals and invitations to

prequalify and for opening of confidential solicitations and notices to prequalify. These

solicitations will be by selective bidding. Section 25 also deals with the opening of bids and

proposals in a confidential two-stage bidding process or two-stage proposal process and in a

confidential two-envelope bidding process or two-envelope proposal process.

Part 4: Procurement Board

Under section 33 the Procurement Board is established and consists of 7 members appointed by

the Governor in Council in the following manner—

(a) 6 members shall be public officers; and

(b) 1 member must be a private citizen.

Schedule 1 of the Act sets out the constitution, operation and procedures of the Board.

Part 5: suspension and debarment

Under section 36, a person may be suspended or debarred from being eligible to respond to any

solicitation issued, or from being awarded a contract, by the government—

(a) if the person has been convicted of involving corruption, theft, embezzlement, forgery,

bribery, falsification or destruction of records or other similar offences that calls into

serious question the honesty of the person;

(b) if the person, in or in relation to a submission made in Anguilla, has provided false or

misleading information or has failed to disclose material information respecting whether

he or she is a responsible contractor;

(c) if the person has violated the ethical standards under prescribed under the Act (ethical

standards of persons participating in procurement);

(d) on any ground prescribed by regulation.


Section 37 deals with the proceedings for suspension or debarment from the procurement process

and section 38 deals with any appeal against a suspension or debarment.

Part 6: deals with miscellaneous provisions which are nonetheless very important to the Act.

Section 41 enumerates the regulation-making powers that complement the Act.

Section 43 allows for the Governor in Council to appoint a Procurement Policy Advisory

Committee after consultation with the Board.

Section 44 allows for the appointment of a Procurement Ombudsman to investigate any

complaint that arises after the award of a contract.

Section 46 allows for the Minister to develop a code of conduct which defines the ethical

standards of persons participating in procurement.

Section 47 is one of the most important provisions in the Bill. It limits any claim under the Act to

a claim for damages and thereby prevents the courts using their powers to interfere with or set

aside an award of contract once it is made.

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